The quest for comprehensive data on New York’s coronavirus pandemic hit a bureaucratic roadblock this week as the Health Department postponed responding to most of the Empire Center’s records requests for two months or more.
The department said it needs the time to complete a “diligent search” for the records, which is implausible in many cases. Much of the information the Empire Center is seeking – such as detailed statistics on testing, hospitalizations and deaths – would come from the same databases the Cuomo administration uses for daily progress reports.
Of 62 requests filed under the Freedom of Information Law (FOIL), the department has fulfilled only three. It has also denied two requests and referred two to a second agency.
For the other 55 data sets, the department issued letters postponing its response until Sept. 22 or 23 – and warned that the delay might last longer than that.
This could signal an extended wait. The Cuomo administration often issues postponements like this multiple times before releasing records under FOIL, a tactic that has been known to continue for years.
“Please be advised this Office is unable to respond to your request by the date previously given to you because a diligent search for responsive documents is still being conducted,” read the 55 nearly identical letters received on Wednesday and Thursday.
“We estimate that this Office will complete its process by September 22, 2021. The Department will notify you in writing when/if the responsive materials are available for release or if the time needed to complete your request extends beyond the above date.”
Postponements of this type, though common, are legally dubious. When agencies cannot immediately respond to a FOIL request, the statute says they must commit to a “date certain,” or hard deadline, for producing the records. In these letters, the department is claiming the flexibility to delay indefinitely – as it has done in the past.
Last August, when the Empire Center requested a complete count of COVID-19 deaths among nursing home residents, the department postponed responding three times – for what would have been a total of seven months – before the center won a court order forcing compliance.
Another unrelated FOIL request by the Empire Center, originally submitted in February 2020, has been delayed eight times, most recently to mid-August.
The 62 FOIL requests filed in June cover a broad range of pandemic data and records – with a goal of promoting maximum transparency about one of the worst public health disasters in state history.
The Health Department arguably should be publishing much of this information proactively and routinely – as a coalition of good-government groups, including the Empire Center, urged it to do in March.
“You and the rest of the government are the stewards, not the owners, of public information,” said the letter, which was organized by Reinvent Albany. “When you obtain information important to New Yorkers’ everyday lives, you should publish it online and make it as easy to use as possible, while protecting individuals’ privacy when appropriate. Sharing government-collected data builds trust in our civic institutions and enables independent analysis by both experts and the public.”
To date, however, the department is sharing only a fraction of what it knows, and even less has been published in the spreadsheet format necessary for in-depth analysis.
In response to the Empire Center’s 62 requests, the department has released two data sets – records of antibody testing by date and county, and records of second-dose vaccinations by county, age, race and ethnicity.
The Empire Center has posted those records on the “Data & Statistics” page of its website.
In response to a third request – seeking records of flu surveillance from last winter – the department pointed to data already published on its website and provided no additional detail.
Two requests, for records of the state’s pandemic stockpile, were referred to the Department of Homeland Security and Emergency Services.
Two requests were rejected. One had sought data on the average time between COVID infection and death, and officials said they had no such records. The other sought copies of “advisories, guidance, memos, directives and other COVID-19 pandemic-related communications from the Health Department,” a description the department said was too vague.
The Empire Center filed a revised request that narrowed the description to “all external communications of coronavirus-related orders, regulations, directives, policy statements and guidance as directed generally to hospitals, nursing homes, clinics, physician practices, group homes, home-care providers and other regulated entities from Feb. 1, 2020, forward, and which are not currently available to the general public on the department website or forward.ny.gov.”
A full listing of the Empire Center’s FOIL requests and their current status is available here.